States look to protect gun rights

Jan. 11, 2013

South Carolina is among the states that have introduced legislation to exempt guns that were made in the state from federal regulation as long as they remain here. / PATRICK COLLARD/Staff

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South Carolina is among a growing number of states that are aiming to keep Uncle Sam’s hands off their weapons if Congress decides to stiffen gun control laws in response to last month’s deadly shooting at Sandy Hook Elementary School in Newtown, Conn.

Eight states — Montana, Alaska, Arizona, Idaho, South Dakota, Tennessee, Utah and Wyoming — have adopted laws that would exempt guns that were made in the state from federal regulation as long as they remain in the state, according to Jon Griffin of the National Conference of State Legislatures.

Another 21, including South Carolina, have introduced similar legislation, according to Gary Marbut, president of the Montana Shooting Sports Association and a driving force behind the Montana Firearms Freedom Act of 2009, which other states have patterned their bills after.

Implementation of that law, and those in the other states, is virtually on hold while a legal battle over it is being carried out in the U.S. Court of Appeals, according to Marbut and his attorney, Quentin M. Rhoades.

South Carolina, Utah, Alabama, Idaho, South Dakota, West Virginia, and Wyoming have filed motions in support of Montana’s law, according to court documents.

Marbut bases his argument on the 10th Amendment’s dictate that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Jessica Leinwand, an attorney for the federal government, argued in a 2010 hearing on the Montana case that Congress’ authority to regulate interstate commerce gives it the power to regulate guns across the nation, saying, “It’s unrealistic to think that these guns won’t leave the state of Montana.”

With other states following Montana’s lead, allowing such laws to stand “would leave a gaping hole in federal firearms regulation,” she said, according to a court transcript.

Government's reach

For Marbut, the federal government’s use of the commerce clause to reach into the state is the larger issue.

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“In general people don’t like the overbearing federal government sticking its nose in everybody’s business,” he said. “That was not the intent of our founding fathers, and people are getting restless about it.”

State Sen. Lee Bright last month introduced for the third year in a row a Firearms Freedom bill that he said is patterned after Montana’s. He believes it has a better chance of being adopted this year because of fears that Washington will pass more restrictive gun laws in response to Sandy Hook and other mass killings over the past year.

“If it’s upheld it would be a great opportunity for South Carolinians to protect their Second Amendment rights,” the Spartanburg Republican said of the Montana law.

He said he has been in contact with gun makers in the state who support the idea and believes it would provide an economic development opportunity, stimulating the gun manufacturing industry in the state.

South Carolina has one major gun manufacturer — FN Manufacturing in Columbia, Bright said. He hadn’t been in contact with the company, and attempts by GreenvilleOnline.com to reach a spokesman were unsuccessful. Its website refers to the company as “a major small arms supplier to the U.S. military.”

The registry of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives lists 87 manufacturers of firearms in South Carolina.

Bright said a bill introduced by Democratic U.S. Sen. Dianne Feinstein of California that would stop the sale of many types of guns that are capable of rapid firing of multiple rounds is a threat to basic gun rights.

“We definitely need to protect those liberties,” he said.

State law already makes it illegal for felons to possess a firearm, he said.

“Obviously we don’t want violent criminals to have guns,” he said. “But this is designed more toward the Feinstein bill where it attacks law-abiding citizens.”

Bright’s colleague, Sen. Larry Martin, chairman of the South Carolina Senate Judiciary Committee, said he plans to put the bill forward for hearings and expects it will have more support than in past years because of concerns that Congress will overreact with new gun control measures.

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“I don’t recommend to the federal government that they propose to come in and start taking up firearms,” the Republican from Pickens said. “They might have them used on them.”

He’s not sure whether the state can get around the commerce clause, though.

“There are some folks that believe the state can make a statement like that and all of a sudden that’s the law and that’s the way its going to be,” he said. “The fact of the matter is we all know that the U.S. Supreme Court is the one that will ultimately decide whether that law is constitutional or not.”

The proposed law wouldn’t open the door to state residents toting any kind of weapon they choose.

It wouldn’t apply to a firearm “that cannot be carried and used by one person” or one that has a bore larger than 1½ inches in diameter, one that uses an explosive projectile or that can fire more than one shot by pulling the trigger once.

It also states that “generic and insignificant parts” of a gun wouldn’t all have to be made in the state to make it qualify as a “Made in South Carolina” weapon.

Public debate

Shopping for a new handgun at Sharpshooters Gun Club and Range in Greenville, Margaret Ellis expressed support for the Firearms Freedom bill: “If we can keep the federal government out of anything, I’d prefer that.”

She said she doesn’t believe assault rifles should be banned, although she thinks there should be “more discrimination” about who they are sold to.

But she added, “I think we’ve got enough gun laws. I think we need to look at our mental health issues with people in this country and provide better care for those people that need help.”

Jim Brazeil, who runs the shooting range at Sharpshooters, said he supports Bright’s bill but believes background checks on people buying guns should be done whether the federal government is involved or not.

At the State Farmers Market across the street, Connie Wagar called Bright’s bill “a bad idea,” saying it would likely open the door to unregistered guns falling into the hands of criminals.

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“The chances are they’ll still get out of the state no matter what you do,” she said. “There’s no way to control them to keep them from crossing that line.”

Jonathan Lowry, director of the Legal Action Project of the Brady Center to Prevent Gun Violence, said the courts have been clear that states can’t exempt themselves from federal regulation of guns because it would have ramifications across state lines.

“The overwhelming majority of Americans, including most gun owners, support commonsense policies that make it harder for dangerous people to get guns, not easier,” he said. “It’s a disturbing distraction to have legislators interested in ways to thumb their nose at the few gun laws that we have in this country.”

Don Kates, a retired law professor and current research fellow with the Independent Institute, a nonprofit, nonpartisan think tank in Oakland, Calif., said state laws protecting gun ownership may have more momentum this year because of what President Barack Obama’s re-election may portend for the future makeup of the Supreme Court.

“If they (liberals) manage to get five members on the court, first of all there won’t be any more Second Amendment, and the scope of federal legislative power will be unfettered,” he said.

Furman University political science professor Jim Guth said in past decades, such as in the 1960’s with several high-profile assassinations, and in the 1980’s, with the attempted assassination of President Ronald Reagan, public sentiment swung in favor of stricter gun control laws.

“That doesn’t seem to have occurred very much in these last tragedies,” he said.

At the heart of the issue is the wording of the Second Amendment: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Court rulings have interpreted the amendment to give the federal government “fairly broad powers” to regulate guns because of its authority over the National Guard — drawing on the “well regulated militia” clause, Guth said.

The trend more recently has extended rights of gun ownership to private individuals, whether they are part of “a well regulated Militia” or not, Guth said.

“In recent years there have been a number of historians who have made the argument that given the conditions of the time when the Second Amendment was passed the intention was indeed to protect the right of individuals to own firearms,” whether they’re members of “a well regulated Militia” or not, he said.

“So, both politically and in intellectual academic kinds of terms there has been a continuing debate on that issue about what the Second Amendment actually meant,” Guth said.